Tuesday, September 11, 2018

How Bad Will Things Become? Part Three: Will the Court's New Reactionary Bloc Bother to Cover Its Tracks?

by Neil H. Buchanan

The Senate's confirmation hearings for Brett Kavanaugh have ended, and unless something wildly unlikely happens, the Republicans in the Senate will soon accelerate their abandonment of anything resembling responsible governance and place him on the high court.

Even beyond the trampling of process, it is notable that not one Republican has said, "You know, I'm a conservative, and I'm even a proudly non-moderate conservative, but this guy is too much even for me."  That should not actually be a surprise, however, because the notion that there is any meaningful ideological distance across the Republican Party has become increasingly difficult to take seriously.

The only surprise so far has been how unashamedly and nakedly partisan Republicans have been throughout this process; but given the trend of their actions over the past few years, I am honestly not sure why that surprised me.

Will this utter disregard for how things look -- the sense of impunity that comes with feeling that one can wield unchecked power -- now carry over from Senate Republicans to the Supreme Court's majority of five hard-right movement conservatives?  Or will they continue to dress up their partisanship in nice words and high-sounding principles?

I will attempt to answer that question here.  In my next column on Thursday, I will explore what the newly reinforced arch-conservative majority will do to dismantle constitutional law -- and modern government -- as we know it.  [9/13 Update: That column will be published next Tuesday, 9/18.]

In July, I wrote a column here on Dorf on Law, "How Bad Will Things Become? Part One,"in which I began to assess the damage that Kavanaugh's addition to the Court might wreak.  This past Friday, I published, "How Bad Will Things Become? Part Two," on Verdict.  This week's two columns might be the final entries in the series, but I make no promises.

One notable point about my Part One column has nothing to do with Kavanaugh or the Court.  That column was all but hijacked by Trump's shocking performance earlier that week in Helsinki in his joint press conference with Vladimir Putin.  People often comment on the sense of disorientation that comes from the pace of horrifying news in the Trump era, and nothing demonstrates that point better than the fact that acts that were reasonably described as "treasonous" are now barely within our memory, even though they happened less than two months ago.

In any event, the non-Trump point of Part One was to assess how a Kavanaugh-fueled Court would address not just Roe v. Wade but reproductive rights more generally.  My point, which some other commentators have subsequently made as well, was that Roe -- as important as that case and Casey are -- is going to be the least of it.

Taking consolation in the idea that "this will merely throw it back to the states, and many states will not outlaw abortion" is dangerously naive.  Conservatives use concepts like federalism as fig leaves, but their bottom line is very much a matter of substance and not process, which in this case means controlling women's bodies and everyone's sexual activities.  It is absurd to imagine Kavanaugh, Gorsuch, and the rest saying, "Oh well.  Abortion is still legal in New York and California and a dozen or so other states.  All hail the laboratories of democracy!"

The move would then be to declare -- as a constitutional matter -- that life begins at conception and thus that abortion (and many forms of birth control) are prohibited nationwide.  Take out Griswold's reviled-on-the-right recognition of a right to privacy, and the assaults on individual sexual freedom will intensify (including on other forms of birth control).

But is this perhaps an exercise in apocalyptic overstatement?  Will conservatives really, I mean really, go so far as to do things that would be profoundly unpopular, such as taking away access to contraceptives?  In Part Two, I argued that yes, they are likely to go that far.  One thing we have seen repeatedly during our lifetimes is that conservatives are all but incapable of taming their appetites, and when they see something that they can take, they take it.

Consider Republicans' response to the Great Recession.  Even before the 2010 mid-term wave election, Republicans fought President Obama every step of the way, insisting on reducing and in other ways compromising the effectiveness of economic stimulus proposals.  One might have thought that they would worry about being blamed for the length and severity of the recession, but they moved forward with their obstructionism anyway.  In the end, Obama and the Democrats were blamed for the Republicans' sabotage of the economy, which allowed Republicans to stoke a backlash at the ballot box.

Now, however, Republicans do not even need to worry about electoral consequences, because even if people are angry about the hugely unpopular things that Republicans will do, voter suppression (which their agents on the Supreme Court will continue to bless) will act as an insurance policy against electoral damage.

I am not, of course, saying that Republicans and their Court appointees will be utterly mindless of political popularity.  I am, however, saying that they know that they have roughly forty percent of current voters on their side, almost no matter what.  And Kavanaugh's presence on the Court surely means that we will soon live under a series of anti-democratic rulings that would all but guarantee that Republicans stay in power.  An awful lot of unpopular things can happen when the majority of the people are voiceless.  (That is why this year's mid-terms are so important.  This might truly be the last chance for democracy.)

As I noted above, the question here is whether the Court's five conservatives (whom I dubbed "the Unfab Five" in Part Two ) will try to pretty up their blatant strong-arming of the law in an effort to make their results look like high-minded jurisprudence.  (Again, the separate question -- What will they do on substantive matters beyond reproductive rights? -- will be the subject of Thursday's [next Tuesday's] column.)

In Part Two, I wrote that "the Unfab Five will easily be able to find a way to write any opinions it wants to write, maintaining at the least the veneer of serious jurisprudence."  That is obviously true, given that the Court's conservatives (with Anthony Kennedy as the fifth vote) have generally tried to pretend that their decisions are the result of applying theoretical constructs like originalism, even when there is no originalist argument in their favor.

Similarly, the conservative majority's whitewashing of Trump's Muslim ban earlier this year included, as Anil Kalhan ably discussed here on Dorf on Law, a dishonest and evasive attempt to say, "No, this is not the 21st-Century version of the reviled Korematsu Japanese-internment decision.  Korematsu was different.  Really!"  As Kalhan explained, this was nonsense; but even many liberal commentators gave the conservative majority credit for finally disavowing Korematsu.

We have seen this in other cases as well, where the conservatives pretend not to be overturning precedents even as they do so, and where actual reversals of precedents (see, e.g., Heller) are dressed up in historical revisionism or other pretensions to intellectual pedigree.

Even when Sandra Day O'Connor, a non-movement conservative who nonetheless voted with the Court's right wing with regularity, was on the Court, they were willing to completely mangle sovereign immunity doctrine first by saying that the Eleventh Amendment requires state sovereign immunity but then (in Alden v. Maine) saying that it was not the Eleventh Amendment at all.  The Court said to the states, as the Wizard of Oz said to Dorothy, "You've always had the power."  Somehow, no one had noticed any of that before the Court announced its ruling.

In short, the Unfab Five will be able to continue to do what the Court's right flank has been doing for years, which is to invent cover stories for results-oriented rulings based on political preferences and not high doctrine.  And no matter what else one might say about those five men, they were all well trained in those skills of conservative obfuscation.

But the question is whether they will continue to bother to do so.  Perhaps they will, simply because there is most likely a certain intellectual satisfaction in strutting one's ability to turn hard-right ideology into constitutional jurisprudence.  They also surely appreciate being applauded by conservative legal scholars, some of whom would probably be offended if the quality of the cover story were to begin to slip.  Because of that, the Unfab Five might say, "We're good at this, so we'll keep doing it."  But maybe not, or maybe not always.

As a rough analogy, I recall sitting in a federal courtroom in Buffalo between my 1L and 2L years, watching a suppression hearing in a drug case.  The lawyers from the federal prosecutor's office were certainly well trained and more than adequately supported, and I suspect that they were capable of making decent legal arguments.  Instead, however, they were offering desultory arguments that the under-funded and over-worked defense lawyer was easily swatting away.

The result?  The judge summarily ruled in favor of the prosecution.  When I had an opportunity to talk to the judge later, he all but told me that there was no chance at all that the prosecution would lose -- not because they had the better of the argument but simply because judges hate to suppress evidence of guilt.  Did it matter that the defense lawyer had made better arguments, even under the extremely defendant-hostile precedents that conservative Supreme Court decisions have created?  Apparently not.

My point is that even capable people, such as those federal prosecutors, can become fat and lazy when they live in a world where they cannot possibly lose.  That is what power is: the ability to say, "Nope," and not have to defend or explain oneself.  Will the Unfab Five continue to make the effort to obscure their unending power play?

One reason to continue to bother is to insulate lawless decisions from being cast aside if, at some point in the future -- and in spite of the Court's ongoing efforts to rig the political system -- the conservatives lose power.  It will be easier for a future Court majority to overrule opinions that amount to "because we said so" than to overturn pseudo-intellectual moves like Citizens United.

And that might be enough reason, along with my suggestion above that Roberts et al. (and their academic cheering section) seem to truly enjoy the game, to continue to act as if the conservatives are basing their rulings on some kind of principles.  Note that, as I argued in Part Two, the Unfab Five will do whatever they want to do to the law, but the point here is that they might not do their worst as openly as they could.

My prediction, therefore, is not that the Court will suddenly begin to issue nothing but facially absurd opinions with Post-It notes saying, "Nyah nyah.  You can't stop us!"  I do expect, however, that over the next twenty or thirty years, the purported rigor of conservatives' judicial opinion writing will continue to slip, and they will become less concerned with covering their tracks.  Unchecked power has that effect.

1 comment:

robert moss said...

I hate to be a nag, and Neil is coming close, but when decisions are based on objective lies, those supposedly in favor of democracy, the Constitution etc., have not stood up and publicly called the Injustices "liars". Cf. Shelby County, Verdugo-Urtiguez (check the spelling, I'm trying to get a brief written and posting from memory) and Medellin. Details upon request. bobmossnj@verizon.net.

The brief concerns a public records request under N.J. law---not a hot topic for Dorf on Law.